When a person can't take care of themselves, or when the parents of a child can't take care of the child, they may need a legal guardian. This is a crucial point to add to your will, especially if you are the parent of a minor child.
As a lawyer, I have helped my clients select a guardian for their children if something happens to them over the years.
Here is what you need to know about choosing a legal guardian for your child.
- People who can be guardians of your children are usually close family or friends.
- The court must approve all candidates for guardianship.
- If one parent is unfit to care for the child, the other parent can ask the court to select them as a guardian.
What is a Legal Guardian?
A legal guardian is a person appointed by the court with the legal right or custody to take care of another person or their property. Sometimes, a judge or the parents can nominate a guardian .
Some rules control who can care for children and act as their parents. These rules help the court determine when they can give the guardian custody of the child and the extent of authority that the guardian has.
Generally, a guardian must act and represent the ward's best interest. A court may remove the appointed person for acting negligently towards the child or acting in their self-interest.
The Types Of Legal Guardianship
The two main types of legal guardianships are full and limited custody. However, we can also break down these two types into three separate categories, which are:
- Conservatorship: The guardians have the legal authority to make decisions on behalf of incapacitated adults or children regarding their personal activities, such as medical care, education, and welfare.
- Fiduciary Relationship: The guardian has the legal authority and responsibility to manage the property and finances of the wards.
- Plenary Guardian. The guardians have all the rights and responsibilities of both types of guardianship.
"If necessary, legal guardianship can become permanent if the caregiver has shown competency in providing for the child. While the child can still keep family connections, this allows for stability and peace of mind."
- Sari M. Friedman, Legal Attorney
What Are The Responsibilities of Legal Guardians?
The responsibilities of legal guardians include making decisions about the child's health and education while providing a safe and permanent home.
The duties of a guardian will vary by state, but in general, they are responsible for providing care and support to their ward. This includes both daily needs and long-term planning, similar to what a parent would do.
I recommend you write down the guardian's responsibility in your will or in a short letter. This way, your wishes for how you want your child to be brought up are recorded.
Who Can Be Legal Guardians?
Those who can be legal guardians are adult family members or friends. They can also be a professional guardian, such as a social worker, though this is less common.
The judges must approve all the candidates you chose for a child's guardian. Parents and the courts often take the following into account when selecting someone to be a guardian for a child:
- Their relationship with the children
- They are a responsible caregiver
- They have financial stability
- Their location is close
- Their values and lifestyle fit with yours
- Their ability to keep siblings together
- Their age and health
- They have the child’s best interests
- They have a permanent home
Choosing a Legal Guardian
You need to take a few steps to make sure you choose the best possible guardian for your child.
These steps include:
- Get In Contact With Your Potential Guardians. Before you nominate someone as your child's guardian, you should speak to them. Make sure that the person can take custody of your children.
- Add Your Nominees' Names To Your Will. You can choose a guardian for your minor children by declaring the names of your nominees in your last will. After answering some basic questions, you will receive printable will forms that state your wishes clearly. You might also want to see a lawyer if you have more complex guardianship wishes.
- Check-In On Your Last Will From Time To Time And Make Modifications As Needed With Your Attorney. You must review your will every few years with your lawyer or whenever you experience a big life event. Make sure that the people you nominated as guardians are still relevant and fit your child's needs.
Why Should You Appoint a Legal Guardian in Your Will?
You should appoint a legal guardian in your will because it is one of the only ways to make sure that whoever takes custody will raise your child according to your wishes if something happens to you.
The court will choose who takes care of your child’s well-being if you do not name a guardian in your will.
This can frequently lead to unpleasant situations, such as siblings being separated or placed with someone you would not have chosen to be a caregiver.
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What Happens If You Don't Nominate a Guardian?
If you don't nominate a guardian, the court will usually appoint guardianship to whoever will serve your child's best interests. If none of the volunteers are fit or nobody steps forward, your child may become a ward of the state and enter into the foster care system.
Is It Possible to Call A Guardian If Both Parents Are Still Living?
Yes, it is possible to call a guardian if both parents are still living. If one parent is unable to take care of the child's well-being, the other parent may petition the court to appoint a guardian. This is often seen in cases of addiction, mental illness, or chronic physical illnesses.
How Long Does A Guardianship Last?
Guardianship lasts until the child turns 18 or is emancipated. Emancipation occurs when a child gets married, joins the military, or becomes legally independent from their parents in some other way.
Do You Need Help in Writing Your Will?
As parents, you spend each day trying to give your child the best possible life. Even if something were to happen to you, selecting a guardian in your will assures that your children will continue to be cherished and protected.
If you need help writing your will or appointing a legal guardian, contact Schmidt & Clark for a free consultation with the best attorneys to help protect your child and secure their future.